Vulgar Clothing Trademark Deserves Legal Protection, Court Rules

2017-12-18

A U.S. appeals court ruled that “FUCT” can be trademarked, saying federal reviewers were wrong to deny that protection over the term’s vulgarity.

Following a recent Supreme Court ruling that trademark protection can be granted to disparaging marks, the U.S. Court of Appeals for the Federal Circuit ruled Friday that immoral and scandalous ones can be trademarked too.

The U.S. Patent and Trademark Office had denied the trademark to men’s fashion designer Erik Brunetti because it was a variation of a vulgar word and was used in imagery that was misogynistic with often violent or bloody scenes. The law banning such trademarks is an unconstitutional restriction of free speech, the court ruled.

“There are words and images that we do not wish to be confronted with, not as art, nor in the marketplace,” Circuit Judge Kimberly Moore wrote for the three-judge panel. “The First Amendment, however, protects private expression, even private expression which is offensive to a substantial composite of the general public.”

The court noted that the agency itself has been inconsistent; some registrations with the acronym “MILF” were allowed and some weren’t, and it allowed the mark FCUK for U.K.-based clothing and accessories retailer French Connection, while rejecting “F**k Project” and “FUCT.” It said that copyright protection is given for songs with vulgar lyrics as well as for scandalous and blasphemous images.

The Supreme Court in June ruled that trademarks that use disparaging terms can be given legal protection, following a case that centered around an Asian-American dance-rock band called The Slants. Registering a federal trademark gives the brand owner added legal protection to protect their products from counterfeits and copycats.